Witnessing arbitrariness: Roncarelli v. Duplessis fifty years on.

• Author: Liston, Mary

In Canadian public law, Roncarelli v. Duplessis stands for the proposition that arbitrariness and the rule of law are conceptually antithetical values. This article examines multiple forms of arbitrariness in Roncarelli, going beyond the usual focus on discretionary power arbitrarily exercised by the executive branch of government.

A close reading of the case brings to the surface other forms of arbitrariness, notably under-acknowledged forms of judicial arbitrariness. Repositioning the case in its social and political context provides an alternative vantage point from which the core conceptual content can be enlarged and the case's normative import better gleaned. The article argues that such a repositioning illuminates how legal actors attempt to constrain arbitrariness within the activity of judging. Reason-giving appears as one significant rule of law practice that can counter institutionalized arbitrariness by seeking to ensure that decision makers throughout the state are attuned to the demands of legality, can be held to account, and are committed to upholding good government.

L'affaire Roncarelli c. Duplessis symbolise l'idee selon laquelle l'arbitraire et la primaute du droit sont des valeurs antithetiques sur le plan conceptuel. Dans cet article, l'auteure examine plusieurs formes d'exercice arbitraire du pouvoir dans Roncarelli, allant au-dela de l'accent qui est generalement mis sur le pouvoir discretionnaire exerce de facon arbitraire par la branche executive du gouvernement.

Une lecture attentive de l'arret fait ressortir d'autres formes meconnues d'exercice arbitraire du pouvoir, notamment par l'appareil judiciaire. En replacant l'arret dans son contexte social et politique, cette question peut s'aborder sous un nouvel angle a partir duquel le coeur conceptuel de l'affaire peut etre elargi et l'importance normative de l'arret mieux saisie. L'auteure soutient qu'un tel repositionnement contextuel expose la facon dont les acteurs juridiques tentent de freiner l'arbitraire dans l'exercice de la fonction judiciaire. Le fait de justifier son raisonnement constitue une pratique importante au sein de la primaute du droit. Cette pratique permet de contrer l'arbitraire institutionnalise en cherchant a s'assurer que les decideurs etatiques soient sensibles aux exigences de la legalite, qu'ils soient imputables et qu'ils s'engagent a maintenir une bonne gouvernance.

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Introduction I. Roncarellis Arbitrariness in a Nutshell II. Witnessing Arbitrariness A. The Subject and the Subjective Core of Arbitrariness B. Functional Unilateralism C. Arbitrary Horizons III. Modelling Judicial Arbitrariness A. Judging Between Politics and the Law B. The Sounds of Silence C. Court (Dys)functions D. Remedying Arbitrariness IV. Reviewing Arbitrariness in Theory Conclusion: Twenty-first Century Arbitrariness In public regulation of this sort there is no such thing as absolute and untrammelled "discretion", that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute.

Justice Rand (1)

Introduction

In Canadian public law, Roncarelli v. Duplessis stands for the proposition that arbitrariness and the rule of law are conceptually antithetical values. Arbitrariness constitutes the central idea around which other concepts in the case revolve, such as authority, discretion, legitimacy, and reason. But what exactly are the attributes of arbitrariness in Roncarelli? Does the judgment disclose all possible forms of arbitrariness? Moreover, can Roncarelli still assist in understanding contemporary exercises of arbitrary power?

As part of the larger reflective and retrospective exercise that this Special Issue represents, this article first examines multiple forms of arbitrariness in Roncarelli (Part I). A close reading of the case demonstrates that arbitrariness as a normative concept possesses a robustness that, when used in legal discourse, draws on a profound historical legacy concerning political and legal forms of constitutionalism (Part II). This paper also suggests that a more comprehensive discourse of arbitrariness profitably provides alternative insights into the case's iconic status in Canadian public law (Part III). Here, the argument brings to the surface implicit models of judging contained within the case in order to examine judicial arbitrariness. Repositioning the case in this manner provides an alternative vantage point to understand the differences between legal and political forms of arbitrariness and their possible remedies. Finally, this paper suggests that Roncarelli provides much assistance in building a stronger theoretical structure from which to understand and articulate not just the rule of law, as is the conventional reading, but also an updated conception of arbitrariness suitable for a modern state (Part IV). Indeed, Roncarelli particularly invites us to revisit, revise, and reconcile the relationship between the principle of the rule of law and that of parliamentary sovereignty.

1. Roncarelli's Arbitrariness in a Nutshell

   Before moving to a more detailed analysis, I will first very briefly retell the Roncctrelli narrative in a manner that highlights the multiple manifestations of arbitrariness that are present in the case. This retelling aims to show in Part II how the combined effects of these multiple manifestations of arbitrariness make the case exemplary. My second objective relies on the first in order to make a modest counter-reading from a perspective fifty years on in Part III.

   Frank Roncarelli was a Jehovah's Witness who ran a restaurant in Montreal and was denied renewal of his liquor licence formally by Edouard Archambault, the Chairman of the Quebec Liquor Commission, but effectively by Maurice Duplessis, then Attorney General and prime minister of Quebec. The denial of the liquor licence ended Roncarelli's economic activities as a restaurateur, threatened his livelihood, and publicly tarnished his name. This denial appeared to be authorized by the Chair of the Liquor Commission who possessed broad discretionary authority by statute to issue or cancel licences on what appeared to be any grounds under the statute. Due to public statements made by Duplessis during a press conference held the day after the cancellation, as well as legal testimony from Chairman Archambault and Duplessis, the real grounds for the licence cancellation were disclosed. It became clear that Duplessis was displeased about Roncarelli's bail support for his fellow Jehovah's Witnesses who were jailed under municipal laws for unauthorized distribution of their religious tracts, and that this was both the real motive and the real reason for the licence cancellation. Though Roncarelli himself was not an active pamphleteer, he was singled out by Duplessis to bear the collective burden of religious discrimination against his group. The real motive seemed to border on vengeance, malice, and the desire for punishment, given Duplessis's insistence that Roncarelli's liquor licence should be cancelled forever. One evidentiary focal point in the case was the question of whether or not Duplessis had actually "ordered" Archambault to cancel the licence during a telephone conversation that occurred the night before the cancellation and subsequent police raid on the restaurant.

   Duplessis further channelled the disapproval of powerful Catholic authorities who wished the province to resist the possible expansion of this alternative faith and who characterized the activities of the Jehovah's Witnesses as near sedition. Duplessis's defence was that he was acting for the larger public good by protecting Quebec society from disloyal agitators, preserving public order, and ensuring that the justice system was no longer clogged up by their unruly activities. (2)

2. Witnessing Arbitrariness

   With this brief narrative in mind, this section will further contextualize Roncarelli in order to tease out the multiple manifestations of legal arbitrariness in relation to legal subjects, arbitrariness in the legal system, and the constitutive values of a larger political morality.

   1. The Subject and the Subjective Core of Arbitrariness

      Justice Rand's judgment, featured in part as the epigraph to this article, most famously captures the normative core of arbitrariness. (3) Justice Rand characterized the liquor licence as an economic near-right, and a vested interest, contributing to Roncarelli's dignity, signifying his autonomy, and communicating his formal status as an equal Canadian citizen. (4) Archambault's apparent complicity in being the legal conduit for arbitrariness bordered on wholesale indifference to the effects of the licence cancellation on Roncarelli's life and dignity, and contributed to Roncarelli's belief that due process had gone awry.

      Duplessis's individualized legal order, on the other hand, manifested the subjective core of arbitrariness traditionally characterized as ill will and the substitution of private for public purposes by individuals in positions of power. (5) Justice Rand argued that Duplessis interfered with the implicit statutory purposes of the Alcoholic Liquor Act (6) because Duplessis knew that these purposes did not further his preferred outcome. Perhaps Duplessis's actions stopped short of outright vengeance or vindictiveness, but Roncarelli's restaurant and livelihood were nevertheless dealt a "mortal blow". (7) In legal terms, the effect of Duplessis's actions therefore amounted to an abusive act that violated an interest essential to Roncarelli's autonomy and sense of dignity. (8) In political terms, it amounted to a form of domination from the perspective of liberal-republican theories of governance: Quebec's...